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DWI With Child

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August 14, 2011, 14:55
Brent Robbins
DWI With Child
I've checked with Richard, Clay, and Warren, but would like some additional input/thoughts:

Officer arrests Def. for DWI 2nd. Passenger is Def's sober (of course...) adult wife who is 6 months pregnant. Officer calls me at 1am to ask about filing DWI With Child.

Finding no conflicting definitions for passenger, etc. in Chapter 49, and no case law on point, I go to the "new" (changed in 2007) definition of "individual" which includes "a child at any stage of gestation" and think about the intent of the statute (protect our children and make putting our kids in danger a more serious offense) and tell arresting officer to "go for it."

August 14, 2011, 20:33
I like it - if he'll do it while his wife's pregnant (and with her consent), he'll do it after the baby's born too, so deter it now. Also, the law recognizes the fetus' legal status if he were to have a wreck and the fetus died. So why not recognize this situation? The intent of the statute is to protect children - I would assume that would include unborn children.

My other thought is this: with this precedent of including a fetus in the definition of a passenger, pregnant women should be allowed to drive in the HOV lane. Just wondering if you want to open that can of worms... Wink
August 15, 2011, 09:48
Brent Robbins
Thanks, G - Obviously I agree with your first paragraph. As far as pregnant women in the HOV lanes.... Interesting point, but no - not gonna open that can. Smile
August 15, 2011, 14:50
Just be prepared for the onslaught of defense attorney arguments about definitional consistency. Wink
August 16, 2011, 10:07
Shannon Edmonds
I'd tell the officer the same. On it's face, I think the law allows it, and IIRC, one of the cases considered by the Legislature before expanding that definition was a DWI case in which a pregnant woman was struck by an intoxicated driver and lost her baby to miscarriage. The Lege exempted certain intoxication-related situations in PC Sec. 49.12, so I think a court could conclude that their failure to exclude this fact pattern gives you the green light.

Have fun making some new law.
August 16, 2011, 11:18
That's an interesting construction of what I thought was a pretty straightforward statute.

My thoughts:

First, I have trouble coming up with any instance where the everyday understanding of "passenger" (as there is no statutory definition of "passenger") could apply to a child in utero.

Second, as the statute refers to a "vehicle. . .occupied by a passenger" etc., I find it difficult to wrap my head around the concept of a fetus "occupying" any part of the car -- unless we're gonna say the womb is now part of the vehicle.
August 17, 2011, 08:46
Larry L
Well if the unborn child counts as a "passenger" for DWI with passenger, is there any special exception for failing to restrain an unborn child in a car seat, which is required for children under certain ages? Of course there is an impossibility defense, but I think it may be stretch to call the unborn child a passenger in your case.
August 17, 2011, 09:38
I don't think you should file as DWI w/ child passenger, because prosecuting it consistently according to the definition of individual would lead to some strange situations.
If an individual includes "a child at any stage of gestation", and there is no intent element for DWI w/ Child Passenger, then by your reasoning it would make sense to prosecute the following case as a SJF: a child is conceived and the very next day the mother gets in the car with a total stranger who is just over the limit. Neither she nor the driver have any idea the woman is pregnant. Does it make sense to charge this driver at the same level as one who got drunk and drove a woman who is VERY NOTICEABLY pregnant down the road? I don't believe so.

A SJF is determinate sentencing and its minimum is the max for a class B misdemeanor. That's a significant enough difference in the potential punishment that I would choose not to file a SJF without clearer guidance from the legislature about where to draw the line.

I believe the real question is "would a reasonable person have known that the passenger is pregnant?", but letting that distinction color our charging decision is, in effect, adding an intent element that appears nowhere in our DWI statute.

Let the legislators who most heavily engage in the pro-choice/pro-life battle every 2 years know this is an unanswered question and they might jump on the issue as a new ground to argue about in 2013.
August 17, 2011, 15:46
Brent Robbins
Shannon - I agree with your response (no offense to everyone else....) especially the fact that the Leg did "exempt" Intox Assault and Intox Man when Mom is the defendant, and the history behind the original bill.

We've been batting a thousand in Denton County this year for "making new law". We'll just have to keep the streak going.
August 19, 2011, 13:58
Note my exception, B-Rob. ;-)
August 19, 2011, 15:39
So can pregnant woman use commuter lane by counting fetus as passenger?
August 22, 2011, 08:29
Shannon Edmonds
Originally posted by JB:
So can pregnant woman use commuter lane by counting fetus as passenger?

I don't know; did the HOV lane statutes in the Transportation Code import the Penal Code definition of individual?

One of the "memes" of some of our recent legislative update presentations has been that a word means whatever the state legislature says it means. For instance, if the legislature wants to make a simple child sex assault qualify for prosecution under Human Trafficking, then it IS Human Trafficking, no matter how silly that may sound. The same rule applies here, IMO.
August 22, 2011, 10:40
But "individual" doesn't appear in 49.045 either. Same with "person" (as the actor, not the minor). Only passenger -- which, of course, is not defined.

If the Legislature wanted to define passenger to include an unborn child, I'd have no problem with that (at least, interpretively). But the average person shouldn't have to guess from reading the statute what the legislators really meant.
August 22, 2011, 11:50
Shannon Edmonds
Touche! Good point. But I don't think that ends it--if a term is not defined in statute, we are to use the generally-accepted definition from your average dictionary. Of course, that definition will be silent on this issue.

So, I guess the real question is, can a non-statutory definition be interpreted using a statutory definition?